Thursday, June 26, 2014

'Gay Marriage' NOT Protected, Says Appellate Judge

Yesterday, more judges ruled that American voters are barred from defining natural marriage (e.g.: Indiana), but also yesterday, Judge Paul Kelly of the Tenth Circuit Court of Appeals became the only federal judge, since last year's Supreme Court ruling on DOMA, to rule that the U.S. Constitution does NOT provide a special right for homosexual "marriage."

. . . this decision is significant because it is the first such ruling by an appellate court. It is also notable because there is a lengthy and detailed dissent by Judge Paul Kelly, who has now become the first judge since Windsor to conclude that a state law banning same-sex marriage does not violate the Constitution. Kelly’s opinion suggests that there is not a clear consensus in the federal judiciary about either the implications of Windsor or the same-sex marriage issue more generally.

. . . today’s decision is an important victory for advocates of same-sex marriage. But Judge Kelly’s dissent suggests that the legal battle over the issue is far from over. The question is likely to return to the Supreme Court, quite possibly sooner than many of us at first anticipated.

Judge Paul J. Kelly, Jr. was in the minority in his opinion as the two other judges on the 10th Circuit Court of Appeals panel found the U.S. Constitution protects the rights of gay couples to marry. Kelly has broken the string of 16 state and federal judges who sided with gay marriage advocates in cases across the country over the past year.

Kelly, 73, is a Republican and appointee of President George H.W. Bush . . . in his 21-page dissent, Kelly warned that his colleagues were overreaching in striking down Utah's voter-approved gay marriage ban.

Creating a national mandate for gay marriage, even in states where it is unpopular, "turns the notion of a limited national government on its head," he wrote, adding later: "We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the 14th Amendment."

"If the states are laboratories of democracy, requiring every state to recognize same-gender unions — contrary to the views of its electorate and representatives — turns the notion of limited government on its head," [Judge Kelly] wrote. "Marriage is an important social institution commonly understood to protect this and future generations. That states sincerely differ about the best way to do this is inevitable."

[The U.S. Court of Appeals for the 10th Circuit] in Denver struck down a second state ban on same-sex marriage Friday, ruling that Oklahoma -- like Utah before it - cannot prohibit gays and lesbians from marrying.

As was the case with Utah's appeal, the panel split 2-1, with Judges Carlos Lucero and Jerome Holmes voting to strike down the ban and Judge Paul Kelly dissenting.

In his dissent, Kelly -- named to the bench by President George H.W. Bush -- said "any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court. . . . At a time when vigorous public debate is defining policies concerning sexual orientation, this court has intervened with a view of marriage ostensibly driven by the Constitution," Kelly said. "Unfortunately, this approach short-circuits the healthy political processes leading to a rough consensus on matters of sexual autonomy, and marginalizes those of good faith who draw the line short of same-gender marriage."